217 Mich. 635 | Mich. | 1922
Defendant was convicted in the recorder’s court for the city of Detroit of a violation of Act No. 338, Pub. Acts 1917, as amended. The particular violation charged was that he unlawfully imported, transported and had in his possession certain intoxicating liquors on the 25th day of June, 1921. Defendant ran a soft drink saloon at 5700 Rivard street. Officers, Chestnut and Campbell, walked into his place on the day in question and found many people in front of the bar drinking; As the officers entered someone “hollered police.” Thereupon the patrons immediately left, leaving defendant alone behind the bar. Upon the announcement of “police” a patron
“The statute provides that when any vessel or container of any kind is destroyed under the _ circumstances described by the officers here, it is prima facie proof that the liquid so destroyed was intoxicating liquor.”
“If fluids are. poured out, secreted or otherwise destroyed by the owner of the premises, or occupant, or by any tenant, assistant or other person, when the premises are searched or to be searched, or by any person in whose custody such fluids may be manifestly for the purpose of preventing their seizure * * * such fluids shall be held to be prima, fade intoxicating liquor and unlawfully possessed.”
We think the testimony of what occurred when the officers entered defendant’s place justified this statement of the court. The question was one of fact for the jury to determine whether any liquor had been spilled or poured out upon the advent of the officers.
Counsel make the further claim that section 28 is unconstitutional for the reason that the presumption which the statute creates is an arbitrary one, and that there is no rational connection between the fact proved and the ultimate fact presumed. We do not agree with counsel that the presumption created by section 28 is an arbitrary one. Keeping in mind the subject-matter of this legislation we think that when liquids are poured out upon the arrival of the officers of the law, to prevent seizure, a presumption naturally arises that the liquid is one forbidden by the law. The presumption which the act raises is consistent with and in accord with the law of self-preservation.
“Now, you have a right to take into consideration the motive a witness may have in giving his testimony one way or the other. In this case, for instance, the defendant has taken the stand in his own behalf. Being the defendant, he has a special interest in the outcome of this case and he might have a motive that would induce him to color his testimony in such a manner as to be most favorable to his own interests. I say you have a right to take that fact into considera*639 tion. On the other hand, it is your duty to weigh and consider his testimony in the same manner as you do the testimony of all other witnesses in the case.”
This raises practically the same question we commented on in People v. Wassmus, 214 Mich. 48, where it was said:
“It, perhaps, would have been better if the court had omitted the particular language complained of, but we are unable to persuade ourselves that the defendant’s interests were in any wise prejudiced by the statement. The statement was true, and every juror knew it, as well before the instruction was given as he did afterwards. It was simply a frank statement of the obvious human side of the situation. If it can be said to be error at all it was not such error as should reverse the case.”
We still entertain these views. The questions of motive and inducement, and the natural tendency in all mankind to protect and shield themselves are well understood by jurors, and this knowledge will be used by them in determining the ultimate fact without any suggestion from the trial court. We cannot say that the instruction was reversible error.
Counsel say this question was not raised in the trial court but as it is a jurisdictional question it can be raised for the first time in this court. It is hardly a jurisdictional question. The recorder’s court was the proper forum in which to try the case. It
The remaining assignments have been examined and we are of the opinion that there is no merit in them.
The judgment of conviction will be affirmed.